SUPERIOR COURT OF JUSTICE

Information No. ONSC 3181

HER MAJESTY THE QUEEN

v.

KEITH LEWIS

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M. DONOHUE

On April 4, 2013 at BRAMPTON, Ontario

APPEARANCES:

A. Berg Counsel for the Crown

H. Doan Counsel for K. Lewis

THURSDAY, APRIL 4, 2013

...COURT OPENS.

...DISCUSSION IN REGARDS TO PRESENTENCE REPORT.

R E A S O N S F O R S E N T E N C E

DONOHUE, J. (Orally):

I’m going to give my reasons for sentence today for Keith Lewis. I will have copies for the Crown and for counsel, and you can review them again with him, but I will read it. The official version will be as printed and signed by me.

Stated the overview that Keith Lewis stands to be sentenced after a conviction on two counts of sexual assault against T.T. The assaults occurred on December 23, 2010.

The circumstances of the offence:

Keith Lewis and T.T. lived together in a rooming house. Early on the morning of December 23, 2010 between 3:00 and 5:00 a.m., Mr. Lewis woke T.T., lifted her off the couch and threw her on the bed on her belly. He held her down and forced intercourse on her until ejaculation. Afterward T.T. was crying on the couch. Mr. Lewis came to the couch and forced intercourse on T.T. while she was on her back. He stopped after a time and he did not ejaculate. Both assaults involved full penetration.

Mr. Lewis’s circumstances:

Mr. Lewis is twenty-five years of age. He has a criminal record of convictions in 2007 for break and enter, fail to comply with conditions of undertakings, uttering threats and failure to attend court; and in 2009 for failure to comply with conditions of undertaking and in 2012 for breach of recognizance.

The presentence report refers to a conviction for robbery in 2001 in Scarborough with a sentence of five months in jail, which counsel agreed cannot be correct as he was thirteen at the time living in Newfoundland.

Mr. Lewis had limited family support when growing up. He was born and raised in Newfoundland, the middle child of six. His father died in an accident when Mr. Lewis was twelve years of age. His mother then had boyfriends who were physically abusive towards Mr. Lewis and his siblings. His mother was a harsh disciplinarian and used corporal punishment on him. Due to the excessive physical punishment Mr. Lewis was removed from his mother’s care and spent eight months in the foster care system before being placed in his grandmother’s care. His grandmother states that the offender was bullied in school, as he was a heavy-set child and he got into fights with his peers. She said his teachers did not give him the attention he needed. He was a slow learner. He was diagnosed with attention deficit hyperactivity and attention learning disorder, for which he was prescribed Ritalin. He has no history of any psychiatric or psychological disorder.

Mr. Lewis has no history of illicit drug use and uses alcohol moderately. He consumes a few beers on the weekend.

He offender quit school after grade 11. The presentence report states that he in receipt of Ontario Works and has no employment history.

There are, however, now some positive supports in his life. At the sentencing hearing his counsel advised that Mr. Lewis was working at a job in Hamilton where he now lives. The offender is in a committed relationship now with Ms. Flomo. They have recently had a baby together. Ms. Flomo describes him as a caring wonderful father and partner. Mr. Lewis’s grandmother and collateral sources advise that these actions by him are totally out of character. The presentence report states that Mr. Lewis is open for direction and amenable to entering into counselling.

Impact on the victim:

These two assaults have had a severe impact on the victim, T.T. She describes in her victim impact statement that since the attacks she has suffered mild to severe depression and post-traumatic stress. She suffers three to five panic attacks a week, has difficulty sleeping and fears public places in case she may see the offender or his friends.

The legal parameters:

The fundamental purpose of sentencing is to contribute to respect for law and the maintenance of a just, peaceful, and safe society. This is achieved by imposing just sanctions that have a number of objectives, among which are to denounce unlawful conduct, to deter the offender and others from committing offences, to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. This is an indictable offence and Mr. Lewis is liable to imprisonment for a term not exceeding ten years. A conditional sentence, although not available under the current legislation, was available to this offender under the applicable law at the time of the offence and so remains available in accordance with Section 11(1) of the Charter. In light of the severity of the assaults the Crown submits a conditional sentence is not appropriate. The defence agrees, and is not requesting such a sentence.

The positions of the Crown and defence:

The Crown seeks a period of incarceration of three years concurrent on each conviction, less time served of twenty-one days.

The defence submits that a period of incarceration of two years concurrent on each conviction, less time served of twenty-one days, plus two years’ probation with rehabilitation would be more appropriate on the facts of this case.

Case law:

The Court of Appeal confirmed a sentence of two concurrent terms of two and one half years imprisonment in a case involving two sexual assaults, R. v. C(R). The first assault began as a non-consensual anal intercourse during consensual vaginal intercourse. The second assault was forced vaginal intercourse. The trial judge equated the first assault with full rape. The Court of Appeal noted that the short duration of the first assault did not render it less than a full sexual assault.

The Crown indicates the case at bar submits that the two assaults on T.T. had no elements of consent, as noted in the case of R. v. C(R), and therefore a term of three years was submitted to be appropriate in this case.

Mitigating and aggravating factors:

There are a number of aggravating factors. The two sexual assaults were full rapes. T.T. was assaulted in the home where she lived. She did not have anywhere to go after the first assault.

The second assault was during T.T. obvious emotional trauma as she was crying and upset after the first assault. Although there was no gratuitous violence, as noted in the case of R. v. C(V), both assaults were inherently violent.

Mr. Lewis has a history of convictions, although none involving sexual assault or actual violence.

The victim continues to suffer the consequences of the assaults with panic attacks, fearfulness, nightmares and stress.

There are a number of mitigating factors. He is aware of the effect that this has on this future family. The offender is now in a committed relationship and is a caring father to a new baby. He is working.

Principles of sentencing:

The underlying principles of sentencing applicable in this case require a balancing of factors, some of them conflicting. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

One of the objectives of just sentencing is to promote a sense of responsibility in offenders, an acknowledging of the harm done to victims and to the community.

Mr. Lewis has been convicted of two counts of sexual assault against T.T. These are serious and violent offences. Only a penitentiary sentence will appropriately reflect the gravity of the offences. He is still a young man at the beginning of his life with a new young family. The need for individual deterrence and rehabilitation must also be reflected in the sentence.

The presentence report and the defence request, probation with rehabilitation:

The Crown agrees that probation would be helpful. Probation is not available on sentences of imprisonment over more than two years. Accordingly, I order a sentence of two years plus one month imprisonment, less credit of one month for time served, twenty-one days, to be served concurrently for a net effective sentence today of two years in the penitentiary, plus two years’ probation.

There will be a recommendation for treatment in a rehabilitation program for sexual offending as recommended by the probation officer.

Ancillary orders:

A warrant will issue authorizing the taking of a DNA sample, pursuant to Section 487.051 of the Criminal Code, and an order requiring Mr. Lewis to comply for twenty years with the Sex Offender Information Registration Act, pursuant to Section 490.013 of the Criminal Code.

There is to be a mandatory weapons prohibition order for ten years, pursuant to Section 109 of the Code. While on probation Mr. Lewis is not to associate, contact, or hold any communication directly or indirectly with T.T., and not to be within 100 meters of any place know of her residence, employment, worship or recreation.

My final decision:

After consideration of the time served Keith Lewis is sentenced to two years’ incarceration on each count to be served concurrently, followed by a period of probation of two years with the following conditions:

A) Report forthwith in person to a probation officer as directed, and thereafter be under the supervision of a probation officer and report as such times and places as that person may require;

B) Not associate of community either directly or indirectly with T.T., except through legal counsel, and

C) Not be within 100 meters of any place of residence, employment, worship or recreation where T.T. is known to be.

I order a DNA authorization pursuant to Section 587.05 of the Code. Mr. Lewis is to comply with twenty years with the Sex Offender Information Registration Act, pursuant to Sections 490.012 and .013(2) of the Criminal Code. There will be a weapons prohibition order, pursuant to Section 109 of the Criminal Code.

The endorsement filed with the penitentiary authorities with include my recommendation that Mr. Lewis be registered in the Sexual Assault Treatment Program, and I’m attaching a copy of my reasons right to the indictment so that it stays with the file, and there was a typo in my signed copy. I’m going to correct that and I will have my assistant make available copies to you shortly of the corrected copy. All right?

MS. BERG: Thank you very much, Your Honour.

THE COURT: Thank you. Anything further?

MR. DOAN: Thank you, Your Honour.

...OTHER MATTERS SPOKEN TO.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5 (2)

I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v. Keith Lewis in the Superior Court of Justice, 7755 Hurontario Street, Brampton, Ontario taken from Recording No. 3199 211 20130404 081634, which has been certified in the Form 1.

(Date)

(Signature of authorized person(s))

Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR Certified Court Reporter, CRAO

Internationally Certified Digital Reporter, IAPRT

PLEASE NOTE:

Any copies of this transcript are unauthorized and are in direct violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990. If additional copies are required, please contact the Records Management Clerk.

This transcript is a true certified copy bearing the original signature in blue ink.

Transcript Ordered: April 19, 2013

Transcript Completed: May 19, 2013

Notified Ordering Party:

Legend

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) – Indicates preceding word has been spelled phonetically.